The First District Revisits Rule 304(a) Requirements and the Supreme Court Changes Citation Formats

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 21, Number 3 ( ) Appellate Practice Corner By: Brad A. Elward Heyl, Royster, Voelker & Allen, P.C., Peoria The First District Revisits Rule 304(a) Requirements and the Supreme Court Changes Citation Formats While decisions reporting on appellate issues seem to be rare, we have one for this issue. In Palmolive Tower Condominiums, LLC v. Simon, the appellate court dismissed a party s appeal for want of a final and appealable order, specifically finding that the circuit court s statement, [t]his order is final and appealable, was incomplete and, therefore, failed to confer appellate jurisdiction under Rule 304(a). Rule 304(a) says, in part: If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court s own motion or on motion of any party. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties. Supreme Court Rule 304(a). Also, as of June 1, 2011, the Illinois Supreme Court amended Rules 6 and 23 concerning proper citation form for all Illinois court filings. Beginning July 1, 2011, a new citation format will apply to all appellate and supreme court decisions, published or unpublished. Rather than being confined by various reporters, the new citation system is based on a unique public-domain case designator number assigned to each case. The new public domain citation system makes Illinois one of more than a dozen states that currently utilize this socalled neutral citation system. The complete list includes: Illinois, Louisiana, Maine, Mississippi, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming. For the most accurate and up-to-date listing, see THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 96-97, Rule (19th ed. 2010). This article will discuss the Palmolive Tower Condominiums case and provide an overview of the amended Rule 6, with examples for your practice. Page 1 of 5

2 Rule 304(a) In Palmolive Tower Condominiums, LLC v. Simon, Nos and , 2011 WL (1st Dist. May 16, 2011), the Illinois Appellate Court First District dismissed a portion of the defendants appeal on the ground that the underlying order was not final or appealable in compliance with Supreme Court Rule 304(a). The plaintiff had filed a multi-count complaint, to which the defendants had filed an answer and counterclaim. The plaintiff filed a motion to dismiss the counterclaims and further asked for judgment on the pleadings. The circuit court granted the plaintiff s motion to dismiss in January 2010, and the defendants filed a notice of appeal from that order. The January order stated that, [t]his is a final and appealable order there being no just reason to delay enforcement or appeal. Palmolive Tower, 2011 WL , at *3. In April 2010, the circuit court granted the plaintiff s motion for judgment on the pleadings relating to count I of the plaintiff s complaint. The April order further stated that, [t]his order is final and appealable. The defendants filed a notice of appeal from the April order and the two appeals were consolidated. On its own motion, the appellate court reviewed its jurisdiction and found it lacking with respect to the appeal from the April 2010 order. According to the appellate court, the April order contained no reference to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal. Noting the Supreme Court decision in In re Application of Du Page County Collector, 152 Ill. 2d 545, 605 N.E.2d 567 (1992), the appellate court acknowledged that Rule 304(a) did not require that a circuit court parrot Rule 304(a) exactly in order to invoke it. Id. Nevertheless, the court read DuPage County Collector as requiring at least some reference to enforceability or appealability. Although it created some leeway for the language that may be used to invoke Rule 304(a), the supreme court in Du Page County Collector stopped short of indicating that Rule 304(a) does not require some reference to immediate enforcement or appealability or the justness of delaying enforcement or appealability. Palmolive Tower, 2011 WL , at *4. Based on Du Page County Collector, the Palmolive Tower court held that a circuit court order accompanied by language indicating that it is final and appealable, but not referencing immediate appeal, the justness of delay, or Rule 304(a), does not trigger the rule. Palmolive Tower, 2011 WL , at *4. In reaching this conclusion, the appellate court recognized its departure from Com-Co Ins. Agency, Inc. v. Service Ins. Agency, Inc., 321 Ill. App. 3d 816, 748 N.E.2d 298 (1st Dist. 2001), where a different division of the same appellate court held that an order granting partial summary judgment on a claim for breach of a restrictive covenant was final and appealable based on the circuit court s statement in the order that the order was, in fact, final and appealable. The Palmolive Tower court observed that the circuit court in Com-Co Insurance Agency had been confronted with what appears to have been the same circuit court language we encounter here. Palmolive Tower, 2011 WL , at *5. Rejecting the reasoning of Com-Co, the Palmolive Tower court said as follows: First, the reasoning [of Com-Co], which begins with a statement that a circuit court declaration of appealability is not controlling, but ends by saying that a reference to appealability is sufficient, is internally contradictory. Second, the reasoning oversimplifies, and thus misstates, the holding from Du Page County Collector, which, as explained above, held that a circuit court s reference to appealability, without a reference to enforceability, could invoke Rule 304(a), but did not hold that the reference to appealability could invoke Rule 304(a) without any reference to immediacy or the justness of delaying the appeal. Third, the reasoning relies on what it terms a circuit court s implicit holding that Rule 304(a) applied; the language of Rule 304(a), however, calls emphatically for an express finding. Page 2 of 5

3 Palmolive Tower, 2011 WL , at *5. For these reasons, the Palmolive Tower court departed from Com Co Insurance Agency and instead held to its own interpretation of Rule 304(a) as requiring something more than a circuit court declaration that an order is final and appealable. According to the appellate court, because the April 2010 order stated only that it was final and appealable, it was not appealable under Rule 304(a). Id. Palmolive Tower should provide some peace of mind for those confronted with a circuit court order stating only that it is final and appealable and should further reiterate to counsel preparing a proposed order that any language added to an order seeking to confer appellate jurisdiction must be in full compliance with Rule 304(a). Amendments to Supreme Court Rules 6 and 23 On June 1, 2011, the Supreme Court announced that it has changed the approved citation format for the state, effective July 1, Illinois represents the most recent addition to the roughly dozen states that already use some form of the neutral citation system pioneered by Wisconsin in the mid-1990s. While Illinois decisions decided and published prior to the July 1 date will still use the traditional case reporter citation formats (i.e., _ Ill. 2d _ and _ Ill. App. 3d _ ), citations to decisions published after July 1 must use the neutral format based on a public-domain case designator number to be assigned to each decision by the issuing court. The amended Rule gives the option of providing a parallel citation to a regional reporter. The new citation system ends reliance on official written volumes, which were first published in Illinois in Prompted by a recognition that increasingly more counsel and courts are relying on Internet access to their decisions and a recognition of the costs associated with continued use of the printed decisions, the court amended Illinois Supreme Court Rules 6 and 23 to authorize the new format for case citations. In a May 31, 2011, press release, Illinois Supreme Court Chief justice Thomas L. Kilbride said of the new system, the changes are reflective of the way we all live and the way the practice of law is changing. So much legal research is now done online through references and sources available on the Internet and even on smartphones that it makes the publication and purchase of official printed volumes unnecessary and a waste of money and resources. 1 Kilbride explained, The official body of Illinois court opinions will now reside on the website of the Illinois Supreme Court, readily available to lawyers, judges and law clerks for official citation and to any member of the public who wishes to read them. The press release noted that the citation changes are part of a movement by the [Illinois] Supreme Court under the tenure of Chief Justice Kilbride and his predecessors to integrate electronic technology with a goal of achieving greater court transparency and efficiency. All state courts now have court web-pages. The Illinois Supreme Court was the first to incorporate Twitter in publicizing announcements and was among the initial courts to make available video and audio recordings of oral argument on the same day the argument occurred. For Illinois Supreme Court decisions, the proper post-july 1, 2011 public domain case designator format shall be: Thus, for example, a case cite would look like this: What does this mean? Case name, [YR] IL [No.] People v. Doe, 2011 IL = year of publication IL = court = docket number Page 3 of 5

4 For the appellate court decisions, the following citation format is required: Case name, [YR] IL App (Dist.) [No.] Examples: People v. Doe, 2011 IL App (1st) People v. Doe, 2011 IL App (2d) People v. Doe, 2011 IL App (3d) People v. Doe, 2011 IL App (4th) People v. Doe, 2011 IL App (5th) Doe v. Illinois Workers Compensation Comm n, 2011 IL App (1st) WC Using this system, the court-assigned unique identifier number represents the last six numbers of your case docket number; i.e., = Subsequent Decisions: Where subsequent opinion is filed under the same docket number, such as a case in the Appellate Court after remand, the cites would read: People v. Doe, 2011 IL App (1st) People v. Doe, 2012 IL App (1st) B Any further opinions arising from the same appeal shall be assigned an alphabetic letter consecutive to the preceding opinion. Rule 23 Decisions: is: The citation system also applies to unpublished Rule 23 decisions. For these decisions, the proper citation People v. Roe, 2011 IL App (5th) U Should an unpublished order under Supreme Court Rule 23 be converted to a published opinion, the U designation shall be deleted. A subsequently filed, unpublished order in the same cause of action will result in use of both a U and an alphabetic designator: Mixed Decisional Histories: People v. Roe, 2011 IL App (5th) UB The Illinois Supreme Court also anticipated that there may be several different dispositions of a single case. The following example provided by the supreme court illustrates an unpublished initial appellate court decision which is published on remand, and then on second remand is released as an unpublished Rule 23 decision. References to these cases would be as followed: Jones v. Smith, 2011 IL App (5th) U [unpublished; initial decision] Jones v. Smith, 2011 IL App (5th) B [published; decision after remand] Page 4 of 5

5 Jones v. Smith, 2011 IL App (5th) UC [unpublished; decision after second remand] Pinpoint Citations The supreme court has also provided for pinpoint citations by requiring each decision to contain a paragraph reference. Each paragraph of opinion is assigned a paragraph number and pinpoint references are to be made as follows: People v. Doe, 2011 IL App (1st) , 15 People v. Doe, 2011 IL App (1st) , People v. Doe, 2011 IL App (1st) , 57, 68 The new format, while very different from our current reporter-based system, is nonetheless logical and provides a common citation system for all Illinois court decisions. Given the longevity of appellate court and Illinois Supreme Court rulings, the traditional system we learned in law school will continue into the foreseeable future. Thus, our pleadings and briefs will contain a strange mix of the traditional case reporter citations and the new public-domain case designator numbers. Whether Illinois will eventually incorporate prior decisions into their electronic archive is not yet known, although some states, such as North Dakota (which has now extended its archive back into the 1960s), have begun this effort and are slowly working backwards to archive older decisions into an electronic format. About the Author Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, P.C. He practices in the area of appellate law, with a subconcentration in workers compensation appeals and asbestos-related appeals. He received his undergraduate degree from the University of Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Workers Compensation Section Counsel. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 21, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL , , idc@iadtc.org Page 5 of 5

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